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European Court of Justice pronouncement on the possibility to demand the end-of-waste status in individual cases

The judgment of the Court of Justice of 28 March 2019 in Case C-60/18 interprets Directive 2008/98/EC on waste in relation to Member States entitlement to adopt measures relating to end-of-waste status.

The judgment is given following a request for a preliminary ruling from the Tallinna Ringkonnakohus (Court of Appeal, Tallin, Estonia) in a dispute between Tallinn Vesi AS and Keskkonnaamet (Environmental Board, Estonia) concerning the adoption of two notices by the latter addressed to Tallinn Vesi in relation to the recovery of waste and which refused to recognise end-of-waste status of sewage sludge that had undergone recovery treatment. In general terms, the request concerns the interpretation of Article 6(4) of the Waste Framework Directive, which provides that where criteria have not been set at Community level, Member States may decide case by case whether certain waste has ceased to be waste taking into account the applicable case-law. The Advocate General's Opinion on this case was explained in a Terraqui post of 16 January 2019.

Tallinna Vesi operates a municipal sewage mains system for the city of Tallinn (Estonia) and the surrounding area and an activated sludge plant for the treatment of waste water. The sewage sludge resulting from the treatment of municipal water undergoes a biological recycling process (R3), consisting on an anaerobic digestion (methanisation), prior to drying, with the intention of composting (aerobic digestion). Tallinna Vesi wished to market the sewadge sludge resulting from this treatment as greening soil, and was therefore hoping to obtain the corresponding waste permit. It should be noted that Estonian law stipulates that the waste permit or the integrated environmental permit must specify the recovery operations following which the waste acquires end-of-waste status. At the time when the permits in question were issued, neither EU law nor Estonian law laid down such criteria for the end-of-waste status of the sewage sludge.

The question before the Court of Justice is twofold. First, if Article 6(4) of Directive 2008/98 must be interpreted as precluding national legislation, such as that where criteria have not been set at EU level for determining end-of-waste status as regards a specific type of waste, such end status depends on the existence of criteria laid down in a generally applicable national legal act concerning that type of waste. And second, if the same article grants to the waste holder, when criteria have not been set at EU level for determining end-of-waste status as regards a specific type of waste, the right to demand the recognition of end-of-waste status by the competent authority of the Member State or by a court of that Member State.

Article 6 of Directive 2008/98 mentions two ways of declaring the end-of-waste status. According to Article 6(1), certain specific waste will cease to be waste when it has undergone a recovery operation and meets criteria established by the Commission for determining end-of-waste status. Under this provision, the declaration of the end-of-waste status would be mandatory, but this possibility does not apply in the present case, as the Commission has not established the abovementioned criteria for sewage sludge. The second way of declaring the end-of-waste status is that laid down in Article 6(4) of the Directive, which provides that Member States may decide on a case-by-case basis whether certain waste has ceased to be waste, in accordance with the case-law of the Court of Justice.

It should be noted that the EU legislature specifically provided that the Member States are entitled to adopt measures relating the end-of-waste status of a substance or object, without, however, specifying the nature of those measures. The Court of Justice interprets, from the wording of Article 6(4) of Directive 2008/98, that Member States may provide for the possibility of decisions in individual cases, in particular on the basis of applications submitted by holders of the substance or object classified as waste, but that they may also adopt technical standards or regulation concerning certain categories of waste or a specific type of waste. However, given the optional nature of the Member State’s action, the Member State is also entitled to take the view that some waste cannot cease to be waste and to refrain from adopting legislation concerning the end-of-waste status of that waste.

However, since it is the responsibility of the Member State to ensure that such abstention does not amount to an obstacle to the attainment of the objectives set by Directive 2008/98 (e.g. encouraging the application of the waste hierarchy, recovery of waste, use of recovered materials in order to preserve natural resources and to enable the development of a circular economy), the Court of Justice considers that it is for the Commission and, failing that, for the Member States, to take into account all relevant elements and the most recent scientific and technical knowledge in order to adopt specific criteria which allow the national authorities and courts to recognise end-of-waste status for waste which has undergone a recovery operation, which enables it to be used without endangering human health and without harming the environment.

In this particular case, the Court of Justice notes that, from the documents submitted, it is apparent that the recovery of sewage sludge entails certain risks for the environment and for human health, in particular those linked to the presence of hazardous substances. Consequently, in light of the discretion, which Member States enjoy, they may refrain from recognising end-of-waste status of a product or substance, or may refrain from laying down standards which would lead to end-of-waste status of that product or substance. Accordingly, the Court of Justice interprets that Article 6(4) of the Directive 2008/98 does not allow a waste holder, such as Tallinna Vesi, to demand, in circumstances such as those in the main proceedings, the recognition of end-of-waste status by the competent authority of the Member State or by a court of that Member State.

In conclusion, in my view, the Court of Justice ruling seems to recognise that waste holders are entitled to demand to the competent authorities or courts the recognition, in an individual decision, of the end-of-waste status, provided that this waste can be reused through a recovery process without endangering human health and harming the environment, in which case it should not contain hazardous substances.

It would have been desirable for the Court of Justice to delve deeper into the argument of the conditioning relating to the presence of hazardous substances and their associated risks, because this presence should not necessarily be an obstacle to the recognition of the end-of-waste status. In this respect, it should be recalled that the last paragraph of Article 6.1 of Directive 2008/98 states that the specific criteria to be developed for the end-of-waste status shall include, where necessary, limit values for pollutants. So their presence is not ruled out. The judgment also raises the question of how these individual decisions would relate to general provisions on the same substance or object, for the sake of consistent and objective interpretation of waste legislation.

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